|[April 08, 2014]
Fish & Richardson Obtains Federal Circuit Affirmance of Patent Infringement Win for the Chicago Board Options Exchange, Incorporated
NEW YORK --(Business Wire)--
Fish & Richardson (News - Alert) announced today that the Court of Appeals for the
Federal Circuit has affirmed that the Chicago Board Options Exchange,
Incorporated (CBOE) does not infringe the '707 patent owned by
International Securities Exchange (ISE). The Federal Circuit's April 7,
2014 ruling came after nearly eight years of fierce litigation that
included two district court cases, two Federal Circuit appeals, and
ISE's request for over $400 million in damages plus trebling.
"This is a huge victory and vindication for our client CBOE. ISE's case
was lost after its first appeal to the Federal Circuit. On remand, it
tried to litigate a case it knew it didn't have, but the District Court
held ISE to the unfavorable ruling from the first appeal. Yet somehow
ISE thought the Federal Circuit would change its mind about its own
ruling in this second appeal," said Jonathan Marshall, a principal at
Fish & Richardson who served as co-lead counsel for CBOE. "While we are
thrilled to cement this win for CBOE, this is a case that ISE lost a
long time ago, and so should have gone away a long time ago. We applaud
the perseverance of CBOE's management and in-house legal team, who saw
this case trough and allowed justice to be done," added Fish principal
Michael Zoppo, co-lead counsel for CBOE.
The case dates back to November 2006 when ISE sued CBOE in the U.S.
District Court for the Southern District of New York alleging that CBOE
infringed its patent on an automated exchange. CBOE operates the Hybrid
Trading System, which integrates manual open outcry and electronic
trading into a single exchange. Fish got the case transferred to the
U.S. District Court for the Northern District of Illinois and obtained
summary judgment of non-infringement in March 2011.
On appeal, the Federal Circuit ruled in May 2012 that ISE's '707 patent
disavowed open outcry and partially automated exchanges. ISE kept
litigating the case on remand, but did not address the issue of
disavowal, which allowed Fish to use a series of pre-trial motions to
preclude ISE's entire theory of infringement. This led to ISE's March
2013 consent judgment of non-infringement in favor of CBOE - moments
before opening statements were scheduled to begin.
The Federal Circuit's April 8, 2014 ruling quotes largely from its prior
May 2012 opinion to affirm that the District Court properly applied its
prior ruling on disavowal and to affirm the judgment of non-infringement
that ISE stipulated to.
The Fish team representing CBOE included Jonathan Marshall, David
Francescani, and Michael Zoppo, principals in the firm's New York
office; Frank Porcelli, a principal in the firm's Boston office; and New
York associates Brian Doyle, Leah Edelman (News - Alert), and Jeffrey Mok.
Fish & Richardson is a global patent, intellectual property (IP)
litigation, and commercial litigation law firm with more than 400
attorneys and technology specialists across the U.S. and Europe. Fish
has been named the #1 patent litigation firm in the U.S. for 10
consecutive years. Fish has been winning cases worth billions in
controversy - often by making new law - for the most innovative clients
and influential industry leaders since 1878. For more information, visit www.fr.com.
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